Parchia v. Parchia

• Decision Date: 29 September 1964
• Citation: 130 N.W.2d 205,24 Wis.2d 659
• Parties: Cora L. PARCHIA, Appellant, v. Earl PARCHIA et al., Respondents.
• Court: Wisconsin Supreme Court

Page 205

130 N.W.2d 205

24 Wis.2d 659

Cora L. PARCHIA, Appellant, v. Earl PARCHIA et al., Respondents.

Supreme Court of Wisconsin.

Sept. 29, 1964.

Niven, Mullaney & Schoetz, Milwaukee, for appellant.

Hayes & Hayes, Milwaukee, for respondents.

CURRIE, Chief Justice.

These two issues are presented by this appeal:

(1) Is there credible evidence to sustain the jury's finding that defendant Parchia was grossly negligent in the operation of his automobile within the meaning of gross negligence as used in the Wyoming guest statute?

(2) If the foregoing question is answered in the affirmative, did the trial court abuse its discretion in finding inadequate the jury's finding of $2,829.50 damages for plaintiff's injuries and in fixing $8,500 as a reasonable amount to measure such damages?

By footnote in Brunke v. Popp (1963), 21 Wis.2d 458, 461-462, 124 N.W.2d 642, we called attention to Babcock v. Jackson (1963), 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1, wherein the New York court abandoned the traditional choice-of-law rule that the substantive rights and liabilities arising out of a tortious occurrence are determined by the place of the tort and refused to apply Ontario's guest statute to an automobile accident which had occurred in Ontario involving residents of New York. In lieu of the discarded rule the New York court adopted the principle that the controlling law to be applied was that of the state having the most significant contacts. We have concluded, however, that the instant case is not a proper one in which to consider the advisability of adopting the principle enunciated in the Jackson Case. In the first place, plaintiff acquiesced in trying her action on the theory that the Wyoming guest statute was applicable. Secondly, because of our conclusion that the verdict of the jury on the negligence issue must be sustained, any determination made with respect to the applicable choice-of-law rule would not affect the result.

Gross Negligence Issue.

Title 31, Section 31-233, 1957 Wyoming Statutes, provides:

'No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton mis-conduct contributed to the injury, death or loss for which the action is brought.'

A most thorough explanation of how the Wyoming court defines the term 'gross negligence' as used in this statute is set forth in the recent case of McClure v. Latta (1960), Wyo., 348 P.2d 1057. We quote therefrom as follows (at pages 1061-1062):

'However, this court has heretofore provided the definition applicable to this jurisdiction, and there is no occasion to depart therefrom. In Arnold v. Jennings, 75 Wyo. 463, 296 P.2d 989, 990, we defined gross negligence as indifference to present legal duty and utter forgetfulness of legal obligations. See also Hawkins v. L. C. Jones Trucking Co., 68 Wyo. 275, 232 P.2d 1014. Prior to that time in Mitchell v. Walters, 55 Wyo. 317, 100 P.2d 102, 107, we had quoted two cases from other states which accorded with our views:

"* * * 'Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence. But it is something less than the willful, wanton and reckless conduct which renders a defendant who has injured another liable to the latter even though guilty of contributory negligence, or which renders a defendant in rightful possession of real estate liable to trespasser whom he has injured. It falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known to have a tendency to injure. * * *' [Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 506, 4 A.L.R. 1185.] * * *'

"* * * 'The element of culpability which characterizes all negligence is, in gross negligence, magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is manifestly a smaller amount of watchfulness and circumspection than the circumstances require of a prudent man. But it falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known to have a tendency to injure.' [In Shaw, Adm'r v. Moore, 104 Vt. 529, 162 A. 363, 374, 86 A.L.R. 1139.]"

Our Wisconsin definition of gross negligence was quite different from that adopted by the Wyoming court. In Twist v. Aetna Casualty & Surety Co. (1957), 275 Wis. 174, 178, 81 N.W.2d 523, 525, in an opinion by Chief Justice MARTIN, this court stated:

'To constitute gross negligence there must be either a wilful intent to injure, or that reckless or wanton disregard of the rights and safety of another or his property, and that willingness to inflict injury, which the law deems equivalent to an intent to injure. Bentson v. Brown, 1925, 186 Wis. 629, 633, 203 N.W. 380, 38 A.L.R. 1417.'

As pointed out in Bielski v. Schulze (1962), 16 Wis.2d 1, 15, 114 N.W.2d 105, under the view enunciated in the more recent Wisconsin cases, ordinary negligence lay in the field of inadvertence, but gross negligence lay in the field of actual or constructive intent to injure. Thus under the Wisconsin view, gross negligence differed in kind from ordinary negligence. The view of many other courts, is that the two do not differ in kind but only in degree and gross negligence is merely negligence of an aggravated character. See Comment, 'An Analysis of Gross Negligence,' 37 Marquette Law Review (1954) 334, 339. It is apparent from the above quotation from McClure v. Latta, supra, that the Wyoming court holds the latter view.

While the Bielski Case abolished the concept of gross negligence in negligence cases arising under Wisconsin law, that holding is entirely inapplicable to a situation where a Wisconsin court applies the substantive law of another state.

We will now review the evidence adduced at the trial to ascertain whether it will support the jury's finding that defendant Earl Parchia was grossly negligent under the Wyoming court's definition of gross negligence.

After visiting with friends a Compton, California, during the afternoon and evening of August 26, 1960, plaintiff and her husband (hereinafter the 'defendant') began their journey back to Wisconsin about midnight that same evening. Defendant did all the driving. He drove continuously from midnight to 4 p. m., August 27, 1960, stopping only for gas. Plaintiff and defendant stayed at a motel from 4 p. m. to 11 p. m., when they arose and resumed their journey. During this seven hour period, defendant had the car checked and filled with gasoline; he was awakened several times during his attempt to sleep by noise from an adjoining restaurant and from trucks on a nearby highway; he showered and shaved prior to 11 p. m.

Plaintiff and defendant left the motel around 11 p. m. and drove to Salt Lake City, Utah, where they stopped to eat. At the restaurant defendant had his half pint thermos filled with coffee. The parties resumed their journey around midnight. Plaintiff, sitting in the front seat, was advised by defendant to relax and go to sleep. Between Salt Lake City and Wamsutter, Wyoming, defendant made one stop for gasoline without getting out of the car. Except at the gasoline stop, plaintiff slept during the entire journey on the morning of the accident. Defendant drove and listened to the radio until about 4 a. m. when he began to feel drowsy. Thereupon he began to sip coffee. After the coffee was consumed defendant continued to get drowsy and at various intervals he would lower the window to relieve the drowsiness. He was unable to keep the window down because of the cold mountain air. With the window closed his drowsiness returned and as a result he nearly ran into the rear end of a preceding station wagon. He avoided colliding with it by swerving around and passing it. He testified that he was traveling at a speed of about 75 miles per hour. In spite of the near collision defendant felt he could make it to Rawlins, Wyoming. After passing the station wagon he observed a sign which he thought read, '16 miles to Rawlins.' After he passed the sign, he did not remember anything until the accident. Defendant's car missed a curve in the road and struck a truck which was parked on a service area adjoining the highway. Defendant awakened after the impact of the accident, finding himself in a prairie off the highway.

In applying the Wyoming guest statute, the Wyoming court apparently has not been called upon to decide whether a driver who falls asleep at the wheel after repeated warnings of drowsiness may be guilty of gross negligence if so found by a jury verdict. However, as appears from McClure v. Latta, supra, Wyoming follows the Massachusetts definition of gross negligence ad stated in Altman v. Aronson (1919), 231 Mass. 588, 121 N.E. 505, 4 A.L.R. 1185. We assume, therefore, that any decision of the Massachusetts court which applies such definition to a situation of a driver falling asleep after having experience drowsiness, would be followed by the Wyoming court. The Massachusetts court in Flynn v. Hurley (19...